Not Every Website Is Entitled to Section 230 Immunity

Section 230(c)(1) of the Communications Decency Act is intended to immunize providers of interactive computer services against liability arising from content created by third parties. Under Section 230, most Internet services will not be liable for false or defamatory material published on their sites so long as the information was created by another party. Although this statute provides website operators with a strong defense against defamation claims and other torts, a motion to dismiss is not a sure thing, at least not here in Virginia.

Section 230 applies to providers and users of an “interactive computer service,” but does not protect information content providers. If a website provides both functions, it will not be immune from liability. In Nasser v. WhitePages, Inc., the Western District of Virginia held that discovery would be required before the court could determine whether WhitePages was entitled to Section 230 immunity. Santa Clara University law professor Eric Goldman, who writes frequently about the protections of the Communications Decency Act, has sharply criticized the ruling as “overly cautious.”

Michael Nasser filed an emotional distress and nuisance action against WhitePages, Inc., alleging that WhitePages incorrectly listed his phone number as that of “Comcast Phone of Virginia,” resulting in thousands of unwanted phone calls intended for Comcast. Nasser made numerous requests to remove the listings, but the listings remained on WhitePages’ website for approximately sixteen months. Nasser alleged that he had to seek http.jpgmedical treatment for various issues because of the unwanted calls, and he sought $500,000 in compensatory and punitive damages for intentional and negligent infliction of emotional distress and nuisance.

WhitePages moved to dismiss Nasser’s complaint for failure to state a claim. The magistrate judge recommended that the motion be granted based on Section 230 immunity. District Judge Michael F. Urbanski, however, rejected the recommendation, finding that additional facts were needed to determine WhitePages functioned as an information content provider to which Section 230 does not apply.

The court found that the record did not permit it to determine how WhitePages functions and whether it qualifies as an interactive computer service, an information content provider, or both. Additionally, factual issues existed as to whether WhitePages was responsible for developing Nasser’s information in a way that would disqualify it from Section 230 immunity. Unlike other cases in which the Section 230 issue had been resolved on the pleadings, this case contained a factual dispute regarding application of Section 230, and more factual development was necessary as to the operation of the WhitePages website in order to determine whether Section 230 applied. The court ordered the parties to address three factual issues: (1) whether WhitePages is an interactive computer service; (2) whether WhitePages is an information content provider; and (3) whether WhitePages was responsible for the development of the incorrect telephone listings.

The court emphasized that parties should deal with Section 230 immunity early on in litigation as Section 230 protects websites from expensive litigation. Still, the court ruled that on the facts before it, the issue would be more appropriately resolved on summary judgment than in a motion to dismiss.

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